ABLawg

Case Commented On: PT v Alberta, 2018 ABQB 496

PT v Alberta, is the decision of Justice Johnna Kubik on the interlocutory application by several parents and various private schools for an injunction against two provisions in Bill-24: An Act to Support Gay Straight Alliances (Bill 24). Their application to delay the legal effect of the challenged provisions until their constitutional challenge could be heard was denied.

Although PT v Alberta is a fairly brief decision determining an interlocutory application, it is interesting for several reasons: (1) counsel for the applicants was a non-profit entity, the Justice Centre for Constitutional Freedoms, who describes their mission as defending “the constitutional freedoms of Canadians through litigation and education” (JCCF); (2) the applicants brought experts whose evidence was in direct conflict with the legislated legal protections for sexuality and gender identity in Alberta; and (3) one of the religious beliefs that the applicants sought protection for was “that all sexual orientations are not equal” (at para 46). I begin with a summary of a decision, and then discuss these three issues in turn.

A Fine Balance: Sentencing Suter in the Supreme Court of Canada

By Lisa Silver

On July 19, 2018

In Criminal, Supreme Court of Canada

By: Lisa Ann Silver

PDF Version: A Fine Balance: Sentencing Suter in the Supreme Court of Canada

Case Commented On: R v Suter, 2018 SCC 34

Sentencing, Chief Justice Lamer tells us in R v M (CA), 1996 CanLII 230, [1996] 1 SCR 500, at paragraph 91, is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” This sentiment neatly encapsulates all that is sentencing: an ephemeral yet earthy task in which the sentencing judge envelopes themself in a venture engaging both heart and mind. It is a “delicate” process, not heavy-handed, which requires a deft understanding of the human condition within the clarity of legal rules and principles. It is an art, not a science, meaning it is not a base computation or a tallying up of factors given pre-determined weight. Art also suggests artistic freedom and the discretionary nature we nurture in the sentencing process. But it is a determination statutorily mandated with well-defined rules and principles. There is wriggle room but just as we must stay within our lanes while driving, the sentencing judge must not over-correct or act erratically in imposing sentence. There are parameters. Some are, as indicated, statutory, as the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 of the Criminal Code). Other parameters arise from the profound sense of community that envelopes us when a fellow member breaks our laws – the laws that reflect our fundamental values. We feel the impact of rule-breakers, but we also feel their angst. We all know, to some degree, we too could be similarly situated, both as victim or offender. It is at this tipping point where the sentencing judge’s task becomes even more delicate as it searches for the fair and just balancing of all which is required to impose a fit and appropriate sentence tailored to the circumstances of the offence and the background of the offender. It is this delicate or fine balancing which is at the core of the myriad of issues arising in the newest Supreme Court sentencing decision in R v Suter, 2018 SCC 34.

Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

By Scott Carrière

On July 18, 2018

In Constitutional

By: Scott Carrière

PDF Version: Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

Case Commented On: Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission, 2018 ABQB 476 (CanLII)

On June 19, 2018, the Alberta Court of Queen’s Bench (the Court) issued its decision in Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission (Steam Whistle), holding that two changes to mark-up rates on craft beer produced outside Alberta were ultra vires s 121 of the Constitution Act, 1867, 30 & 31 Vict, c 3 (the Constitution). The Alberta Gaming and Liquor Commission (AGLC) applies these mark-ups to retailers based on different classes of liquors. Prior to 2015, the same mark-up was applied to all craft beer produced anywhere in Canada. However, by 2016, the mark-up regime had differential rates applied to different regions, along with a grant for Alberta brewers to offset to the mark-up they would otherwise pay.

In assessing their pith and substance, Justice Gillian Marriot held the AGLC’s mark-up regime to be a valid scheme of proprietary charges under the Gaming and Liquor Act, RSA 2000, c G-1 (GLA). Ultimately, however, she found that the intention behind the changes to the mark-up regime was to advantage Alberta craft brewers, constituting a barrier to interprovincial trade under the analytical framework for s 121 established earlier this year in R v Comeau, 2018 SCC 15 (CanLII) (Comeau).

In this post, I will review the Court’s decision and comment on its significance, both with respect to the mark-ups’ classification, and in cementing recent s 121 jurisprudence.

Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

By Nigel Bankes

On July 17, 2018

In Energy

By: Nigel Bankes

PDF Version: Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

Case Commented On: David Suzuki Foundation v Canada-Newfoundland Offshore Petroleum Board, 2018 NLSC 146

Corridor Resources Inc. (Corridor) received a nine year exploration licence (EL 1105) from the Canada-Newfoundland Offshore Petroleum Board (CNLOPB or Board) on January 15, 2008 under the terms of the federal and provincial legislation implementing the terms of the Atlantic Accord: Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, S.C.1987, Ch. 3 (Federal Act), and Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, R.S.N.L. 1990, c. C-2 (Newfoundland Act). As is customary, the EL was divided into two periods: Period I, five years and Period II, 4 years. In order to validate the licence for Period 2 Corridor had to commence the drilling of a well within the Period I and diligently drill through to completion. Corridor’s proposal to drill proved controversial and triggered a time-consuming environmental assessment procedure. In response to this Corridor applied for and was granted an extension to Period I but in the end it was not able to drill a well as required by the EL.

Alberta and British Columbia: How the constitution makes you best pals – Constitutional Perspectives

By Admin

On July 16, 2018

In Energy

Presenter: Fenner Stewart (Professor, University of Calgary)

PDF Version: Alberta and British Columbia: How the constitution makes you best pals – Constitutional Perspectives

Summarized By: Alexander Crisp, JD Candidate 2020, University of Calgary

Editor’s Note: This is the fifth in a series of blog posts that provides summaries of presentations from the ninth annual Energy Regulatory Forum, held in Calgary on May 28, 2018, as summarized by student attendees.

On May 28, Professor Stewart from the University of Calgary shared his views on Kinder Morgan’s Trans Mountain Expansion (TMX), and some of the constitutional tools that the British Columbia (BC), Alberta and federal governments have at their disposal to use on the project.

A Religious Belief in Inequality: No Injunction Against Bill 24

A Fine Balance: Sentencing Suter in the Supreme Court of Canada

Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

Alberta and British Columbia: How the constitution makes you best pals – Constitutional Perspectives